When the Supreme Court issued its decision in Heller v. D.C. back in 2008, justices took pains to note that “the Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill,” but never actually articulated what longstanding traditions they were specifically referring to. Under current federal law, it is “unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person “has been adjudicated as a mental defective or has been committed to any mental institution”; a statute that clearly doesn’t apply to every American being treated for depression or those in counseling.

Most states have similar language in place, but even in anti-gun states like California the law requires an adjudication by a court to be danger to themselves or others because of a mental illness. Now, however, gun prohibitionists in New York and Hawaii want to dramatically lower that standard and require all would-be gun owners to submit to a mental health evaluation before they can exercise their right to keep and bear arms.

As we discuss on today’s Bearing Arms’ Cam & Co, the idea is getting pushback; not only from gun owners, but from some healthcare workers as well. At a legislative hearing in Hawaii on Monday, the Hawaii Primary Care Association submitted testimony expressing grave reservations about HB 1230‘s requirement that prospective gun owners be pre-screened by police or mental health workers before being approved for a firearm permit; questioning how the chief of police in any given county would reach that finding and pointing out that a finding of mental illness can’t really be diagnosed by a law enforcement officer or even any given healthcare worker.

“If it is the Legislature’s intent that private health care providers be utilized, HPCA is concerned that the expertise needed by a health care professional to determine whether a person ‘does not appear to be mentally deranged’ is quite specialized. Mental health has become so prevalent and so nuanced that a primary care physician, registered nurse, or other frontline professional may not have the expertise nor a sufficient amount of time with a patient to correctly identify the severity of a patient’s mental health to the degree necessary for a sound determination of a patient’s fitness to receive a firearms license.”

The HCPA further notes that the state is currently experiencing a “severe shortage of mental health professionals”, which means that those who do try to purchase a firearm could be forced to wait for weeks or months for an opportunity to be scrutinized by a psychiatrist or psychologist before they can even apply for their firearms permit. Of course, for the anti-gun lawmakers in Hawaii that’s a feature, not a bug, and HB 1230 was approved on Monday by the Senate Committee on Public Safety and Intergovernmental and Military Affairs despite the concerns raised by the HPCA and others.

This terrible idea isn’t just popping up in Hawaii. New York Democrats have introduced a similar measure as well, though S 4126 has not yet received a hearing. Under the terms of that legislation, the state’s Mental Health Commissioner would responsible for coming up with an “administrative process for the mental health evaluation of any individual prior to that individual’s purchase of any firearm, rifle, or shotgun.” The bill is short on specifics, instead empowering a bureaucratic office to come up with the criteria for evaluating would-be gun owners, but its intent is clear; to use the state’s “mental hygiene” law as broadly as possible in order to deny as many people as possible access to their Second Amendment rights without a formal adjudication by a court.

As in Hawaii, however, New York is also suffering from a shortage of mental health professionals, which means that finding someone to do that evaluation won’t be easy. And just like in Hawaii, there’s a real risk that whoever is empowered by the state to sign off on would-be gun buyers would have every incentive to deny them; either because of their own personal opinion on the right to keep and bear arms or simply to avoid the prospect of giving approval to someone who later went on to commit a crime.

From a practical perspective, these bills impose significant burdens on an already overwhelmed mental health system, but they also lack any sort of response when someone is determined to be dangerous. Sure, they’re denied their ability to own a gun, but neither measure requires or even offers any sort of mental health treatment to those individuals. These are gun control bills, not mental health proposals, and the goal is to deprive individuals of their fundamental right to keep and bear arms, not provide help for those who might need it.

Beyond those pragmatic considerations, these measures are also fundamentally flawed from a constitutional perspective. Again, the vast majority of laws at both the federal and state level regulating or prohibiting firearms possession for those deemed mentally ill require an actual adjudication, not merely an opinion by someone who may not even be a health care worker. While these bills are couched as attempts to keep dangerous people away from firearms, they look more like shameless attempts to once again supply the State with the arbitrary and subjective authority to approve or deny anyone their fundamental right to bear arms; this time by making them prove they’re not crazy, as opposed to making them prove they have a “good and substantial reason” to bear arms in self-defense.